Column: School choice works and is constitutional

By Richard Komer

Wednesday marks the 10th anniversary of one of the most important U.S. Supreme Court decisions since Brown vs. Board of Education. In Zelman v. Simmons-Harris, the court upheld the constitutionality of a school choice program in Cleveland for low-income children long ignored by the educational establishment. The ruling laid to rest the argument of public school apologists that giving parents the means to choose private religious schools for their children's education violated the Constitution's Establishment Clause. The court held that so long as a program is religiously neutral — neither favoring nor disfavoring a religious school option — and so long as that choice is driven by the independent choices of parents, the fact that many families will choose religious schools does not violate the Constitution's guarantees of religious freedom for all nor advance the establishment of religion.

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Zelman represented a huge step forward in a then decade-long effort to vindicate the constitutionality of programs that enable parents to select the best available education for their children with publicly funded vouchers — whether the schools the parents selected were public, private or religious. Zelman opened the way for an explosion of choice programs across the nation — programs that represent a truly fundamental change from the educational status quo. Developments in Ohio exemplify this trend that continues to expand nationwide.

While Zelman was winding its way through the state and federal courts, Ohio enacted a charter school law that provides additional alternatives for families within the public school system. Ohio enacted one of the very first scholarship programs for students with special needs when it created a program for students with autism, a program that it recently expanded to all students with special needs. It is one of eight such state programs nationwide. Ohio also led the nation when it enacted one of the first statewide scholarship program for students in failing public schools, its EdChoice Program.

Indiana and just recently Louisiana followed Ohio's lead in instituting state-funded scholarship programs, while other states like Arizona, Florida, Iowa, Pennsylvania and Rhode Island have created programs that provide tax credits for donations to fund private scholarship programs. The Cleveland program itself has served as a model for similar city programs in Washington, D.C., and New Orleans, while Wisconsin has expanded the original city program in Milwaukee to the city of Racine, bringing the number of city scholarship programs to five. All told, there are now some 27 school choice programs in the United States offering parents the opportunity to select a private school for their children's education — all in one way or another the progeny of Zelman.

This remarkable progress has resulted because of education reformers and their legislative partners who recognized early on that the public education system is incapable of reforming itself from within. Teachers' unions and public education bureaucracies exercise too much control to permit real reform to occur, endorsing instead only those programs that increase their membership or offer cosmetic change.

The bottom line is this: In study after study, school choice offers a cost-saving alternative to continuing to reward failure with ever increasing public funding. By empowering parents, school choice gives them real power to improve their children's lives, resulting in greater parental involvement and increased satisfaction. As graduation rates have gone up for participating families, increased interest in school choice has developed across the board, but notably among leaders of minority communities, whose children are tragically ill-served by the existing government monopoly over public education.

Thanks to Zelman, as more and more states consider school choice legislation in all its variety, they can do so confident that school choice is fully compatible with the federal Constitution.

Richard Komer is a senior attorney at the Institute for Justice, which represented parents in Zelman v. Simmons-Harris.

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